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

Lazycis

lazycis said:
PLAINTIFF'S MOTION FOR LEAVE FOR TO FILE SUPPLEMENTAL PLEADINGS
......
XXX, Pro Se
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Awesome! I don't know what to say. Best wishes to you.

In the Motion For Leave, it provides a new vision to the judge. But, it did't ask for immediate adjudicaton. Should be added in?
"The defendants have not filed an answer yet so the granting of this motion will not result in prejustice." The AUSA did file MTD to the Court.
 
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patricia_432 said:
Awesome! I don't know what to say. Best wishes to you.

In the Motion For Leave, it provides a new vision to the judge. But, it did't ask for immediate adjudicaton. Should be added in?
"The defendants have not filed an answer yet so the granting of this motion will not result in prejustice." The AUSA did file MTD to the Court.
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You may add
"Therefore, Plaintiff would like to amend her prayer as follows:
VIII PRAYER FOR RELIEF
WHEREFORE, Petitioner respectfully prays that the honorable Court grant the following relief:
i. Assume jurisdiction over this cause;
ii. Declare that the Defendants’ failure to act is illegal, arbitrary, capricious and abuse of discretion;
iii. Compel Defendants and those acting under them to perform their duty to adjudicate Petitioner’s application for permanent residency forthwith.
iv. Grant attorneys fees and costs of court;
v. Grant such other and further relief this Court deems just and appropriate."


MTD is not an answer.
 
I have submitted my amended complaint with DOS as defendant and have asked for AC21 numbers. Now AUSA is asking for 45 days additional time to respond. I said I will oppose extension > 21 days. I havent seen any precedence on this and hopefully there will be soon.

>> Remember that AC21 numbers can only be used if there is insufficient demand for visa numbers.. By the looks of it, with the new memo, I don't think this will hold good for this year.
>> BTW, one can argue that AC21 is only a specific way to obtain an additional visa. By statute, visa numbers do not expire for EB cases(it says in the statute for diversity visa cases).
gc_mania said:
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wom_ri said:
bibdaily info:
Extension of Validity of Medical Certifications on Form I-693
http://www.uscis.gov/files/pressrelease/I-693_extension_ja708.pdf

Does anyone know about delayed 485 and how long the original medical is valid ?
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Technically, it's valid for 1 year (according to the USCIS, could not find it anywhere is laws&regs), but every year the USCIS extends the validity period for another year. So you need to file for AOS within 1 year of passing a medical (8 CRF 245.5). After that, it's valid until you get a GC or go to Heaven (whichever comes first).
 
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requesting visas prior to adjudication

My arguments on why USCIS regulation that specify that visa numbers be requested prior to adjudication be invalidated:
If visa number is requested for an applicant with a priority date much later than those of an applicant withheld by FBI namecheck... it does not conform to congressional intent.

See
ONOVAN EARL CRAWFORD, Petitioner, versus U.S. ATTORNEY GENERAL,
No. 07-12813 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2008 U.S. App. LEXIS 4268
February 25, 2008, Filed
-----------------------------------------------------
In April 2006, we invalidated 8 C.F.R. § 1245.1(c)(8), which barred arriving aliens in removal proceedings from applying for adjustments of status. Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1319-1320 (11th Cir. 2006). We found that the statute enabling the regulation was ambiguous as to whether the Attorney General could regulate the eligibility of aliens to apply for adjustments of status. Id. at 1321. The enabling statute, however, indicated that parolees, who qualify as arriving aliens, would be eligible to apply for adjustments of status. Id. We held that this intent, that aliens in removal proceedings be eligible to apply for adjustments of status, was negated by the Attorney General's regulation. Id. at 1322. Agreeing with the Third Circuit, we stated that "while the statute may be ambiguous enough to allow [*3] for some regulatory eligibility standards, it does not so totally abdicate authority to the Attorney General as to allow a regulation . . . that essentially reverses the eligibility structure set out by Congress." Id. Thus, we stated that the Attorney General's regulation was based on an impermissible construction of the governing statute because it barred almost all paroled aliens from eligibility. Id.
 
How about Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005)?

"Viewing the larger statutory context, we find Congress has also been explicit about where the Attorney General has been granted discretion and where he has not. By contrast with other areas, there is no explicit grant of discretion to redefine eligibility to apply for adjustment of status of parolees to exclude those in removal proceedings. Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria. See 8 U.S.C. §§ 1225(b)(1), (2). In addition, persons cannot be granted paroled status at all if they pose a security risk; they are to be ordered removed and this order must be reported to the Attorney General. 8 U.S.C. § 1255(c)(1). The statutory scheme reflects Congress's careful balancing of the country's security needs against the national interests Congress wished to advance through adjustment of status proceedings. The regulation upsets the balance Congress created.

Checking our construction of the statute against the legislative history of section 1255, we find the regulation to be inconsistent with the intent expressed in the statute. In 1960, when Congress included paroled aliens as aliens who are eligible for adjustment of status relief through section 1255, it did so to solve certain problems, which we describe later. The effect of the regulation is to re-institute the problems Congress wished to solve. Further, until the 1997 promulgation of the regulation, the Attorney General had consistently interpreted section 1255 in a manner consistent with the statute and the legislative history and inconsistent with the 1997 regulation. "
 
count nc days for citizenship

Hey Lazycs,
Do you know of any suits or news about counting nc delay days for citizenship?
 
mmlulin said:
Hi WOMers,

Finally I got THE email in the morning. Special thanks goes to Lazycis, Wom-ri, and jefkorn et al. I filed WOM for GC at the 18-month point (eb1) late in January, then came the Feb 4th memo. I don't know which event trigged the approval, it seems every road leads to Rome in my situation. I called AUSA last Monday, he said that I was already in the queue and would call me immediately upon any significant actions. I am not in a hurry any more, guess he will try to find me like crazy before the 60-day thing ends. I might refuse answer his call for a few days :cool:

Initially I wanted to have a lawyer to do the WOM. After having talked to 2 lawyers, I found out that they even told me things inaccurate and 1 lawyer had never filed any cases in the federal court. Then I decided to do Pro se after reading this post for a week. I am really glad that I have the ball to sue the government! If you are reading this post, you can do it too after reading a month-worth of posts. It is NOT that of a big deal.

Oh wait, I just realized that my case was approved in a leap year, I can only celebrate the anniversary every 4 years. How will I count the years for Natz, will I have to do WOM again? :eek: Oh man :D:D:D

Tips for WOM wannabes
1. Get a PACER account
2. Learn to use Acedemic Lexis-Nexis if you have access
3. Read this thread for at least a month-worthy of posts before asking any questions, and keep reading every 2 hours afterwards.
4. Double check you complaints before filing. I have read through many original complaints, a lot of them have obvious mistakes. You need to show your proficiency fighting with them!

BTW, my last FP was Aug 06. Last week the service rep mentioned to send me a new FP appointment, obviously, it is not needed. I did not do the TB skin test, and they did not care either.
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congrats on your approval! just wanted to reconfirm- they did not ask for new FP after your first FP in Aug 06?
 
I think it will be difficult because of statute:
§ 1427(a)(1) clearly states:


(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months.

I think asking for a backdated GC is a better strategy rather than bypassing this statute.


gmlvsk said:
Hey Lazycs,
Do you know of any suits or news about counting nc delay days for citizenship?
Click to expand...
 
Got this:

Application Type: I485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR TO ADJUST STATUS

Current Status: Card production ordered.

My FBI name check is pending since October 22, 2003. Still have no idea if it completed or not, waiting for reply from senator's office, takes up to 2 month. No excitement, anger for being hostage under domestic arrest and being branded by suspicion for so many years passed and coming, anger on being loser and pariah. #$%&* USCIS and FBI for murdering 4 years of my life. I'm not welcomed in this country!

This is election year, immigration is a hot political issue again in this country. Let me make some prognosis: I'm almost sure we'll see some humanitarian improvements. I hope this long Republican permafrost is going to be over, its time for changes.

Good luck to everybody!
 
Congrats.
Let the forum know if you need help to fight for a backdated GC.
If you really wish to thank the people who helped you get a GC now:
please write a simple letter to the following people(same letter should work):
1. Judge Michael Baylson
address:
Judge Michael M Baylson
United States District Court for the Eastern District of Pennsylvania
U.S. Courthouse
601 Market Street, Room # 3810
Philadelphia PA 19106-1727

2. Judge Brinkema
address:
Judge Leonie M. Brinkema
U.S. Courthouse
401 Courthouse Square
Alexandria, Virginia 22314
( I have sent my WOM copy to Judge Baylson).
5th_Y_AOS said:
Got this:

Application Type: I485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR TO ADJUST STATUS

Current Status: Card production ordered.

My FBI name check is pending since October 22, 2003. Still have no idea if it completed or not, waiting for reply from senator's office, takes up to 2 month. No excitement, anger for being hostage under domestic arrest and being branded by suspicion for so many years passed and coming, anger on being loser and pariah. #$%&* USCIS and FBI for murdering 4 years of my life. I'm not welcomed in this country!

This is election year, immigration is a hot political issue again in this country. Let me make some prognosis: I'm almost sure we'll see some humanitarian improvements. I hope this long Republican permafrost is going to be over, its time for changes.

Good luck to everybody!
Click to expand...
 
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Congrats..
Who knows.. you might get a MTD notice in the mail at the 60 days mark..
or a call asking for 60 day extension. You should give it to them and
then wait for another 60 day extension call. Play along..
Then.. you will receive the prized MTD packet in your mail.
Play along..
mmlulin said:
Hi WOMers,

Finally I got THE email in the morning. Special thanks goes to Lazycis, Wom-ri, and jefkorn et al. I filed WOM for GC at the 18-month point (eb1) late in January, then came the Feb 4th memo. I don't know which event trigged the approval, it seems every road leads to Rome in my situation. I called AUSA last Monday, he said that I was already in the queue and would call me immediately upon any significant actions. I am not in a hurry any more, guess he will try to find me like crazy before the 60-day thing ends. I might refuse answer his call for a few days :cool:
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Thats interesting..Can you post or PM me the list of cases that were resolved within 60 days without MTD (& the ones that got MTD) if you have them.
Iam building a case of affirmative misconduct based on USCIS litigation strategy and this data should help.
>> As for what you deserve.. you would have received the same MTD as what the earlier filers got :)
maybe even the cut-and-paste would have been in error :)
mmlulin said:
LOL, I deserve an MTD. I was preparing the possbile MTD mentallly and intellectually shortly after filing the case. Luckily, most cases in my district were closed around 60 days, only few cases got MTD.
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conflict with 8th circuit ?

Jean Mouelle; Germaine Mouelle, Petitioners, v. Alberto Gonzales,
Nos. 03-1760/03-3086
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
416 F.3d 923; 2005 U.S. App. LEXIS 15581

October 21, 2004, Submitted
July 29, 2005, Filed
------------------------------------
In Succar, the United States Court of Appeals for the First Circuit concluded that 8 C.F.R. § 1245.1(c)(8) was inconsistent with 8 U.S.C.S. § 1255(a) and was thus invalid under the first step of Chevron because Congress had directly spoken to the precise question at issue. The United States Court of Appeals for the Eighth Circuit respectfully disagrees with the First Circuit's decision in Succar. The Eighth Circuit does not believe that 8 C.F.R. § 1245.1(c)(8) is properly evaluated under Chevron's first step, given the discretionary nature of the relief available under 8 U.S.C.S. § 1255. While Congress surely did speak to eligibility in § 1255, it left the question whether adjustment-of-status relief should be granted to the Attorney General's discretion. 8 U.S.C.S. § 1255(a), (i)(2). Administrators vested with such discretion may exercise that discretion by rule or on a case-by-case basis. And the Eighth Circuit can find no basis upon which to conclude that 8 C.F.R. § 1245.1(c)(8) does not embody the Attorney General's decision not to afford discretionary relief to the delineated class of aliens--arriving aliens in removal proceedings.


This case is quite different. First, the regulation at issue does not purport to interpret statutory eligibility standards, but rather rests on the discretionary authority that Congress explicitly [**19] gave the Attorney General to grant adjustment-of-status relief. And, even if we take Cardoza-Fonseca as somehow relevant to our inquiry, there is no congressional intent evinced by a similar mandatory-relief provision that limits the Attorney General's ability to determine by regulation which statutorily eligible aliens will get the relief that he has the power, but not the duty, to grant.
-------------------------------------------
however other circuits agree with succar:
MARTY DANSO, Petitioner, v. ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL, Respondent.
No. 05-60919
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
489 F.3d 709; 2007 U.S. App. LEXIS 14139
-->
See Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir. 2005) ("Although Congress delegated to the Attorney General the discretionary authority to grant or deny an application for an adjustment of status, 8 U.S.C. § 1255(a), Congress did not delegate to the Attorney General the discretion to choose who was eligible to apply for such relief. Thus, we agree . . . that Congress has spoken to the precise issue of who is eligible to apply for adjustment of status and that 8 C.F.R. § 245.1(c)(8) is directly contrary to this Congressional determination."); Zheng v. Gonzales, 422 F.3d 98, 114-15 (3rd Cir. 2005) (same); Succar v. Ashcroft, 394 F.3d 8, 24 (1st Cir. 2005) (same).
lazycis said:
How about Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005)?

"Viewing the larger statutory context, we find Congress has also been explicit about where the Attorney General has been granted discretion and where he has not. By contrast with other areas, there is no explicit grant of discretion to redefine eligibility to apply for adjustment of status of parolees to exclude those in removal proceedings. Congress did not place the decision as to which applicants for admission are placed in removal proceedings into the discretion of the Attorney General, but created mandatory criteria. See 8 U.S.C. §§ 1225(b)(1), (2). In addition, persons cannot be granted paroled status at all if they pose a security risk; they are to be ordered removed and this order must be reported to the Attorney General. 8 U.S.C. § 1255(c)(1). The statutory scheme reflects Congress's careful balancing of the country's security needs against the national interests Congress wished to advance through adjustment of status proceedings. The regulation upsets the balance Congress created.

Checking our construction of the statute against the legislative history of section 1255, we find the regulation to be inconsistent with the intent expressed in the statute. In 1960, when Congress included paroled aliens as aliens who are eligible for adjustment of status relief through section 1255, it did so to solve certain problems, which we describe later. The effect of the regulation is to re-institute the problems Congress wished to solve. Further, until the 1997 promulgation of the regulation, the Attorney General had consistently interpreted section 1255 in a manner consistent with the statute and the legislative history and inconsistent with the 1997 regulation. "
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wom_ri said:
Jean Mouelle; Germaine Mouelle, Petitioners, v. Alberto Gonzales,
Nos. 03-1760/03-3086
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
416 F.3d 923; 2005 U.S. App. LEXIS 15581

October 21, 2004, Submitted
July 29, 2005, Filed
------------------------------------
In Succar, the United States Court of Appeals for the First Circuit concluded

....

See Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir. 2005) ("Although Congress delegated to the Attorney General the discretionary authority to grant or deny an application for an adjustment of status, 8 U.S.C. § 1255(a), Congress did not delegate to the Attorney General the discretion to choose who was eligible to apply for such relief. Thus, we agree . . . that Congress has spoken to the precise issue of who is eligible to apply for adjustment of status and that 8 C.F.R. § 245.1(c)(8) is directly contrary to this Congressional determination."); Zheng v. Gonzales, 422 F.3d 98, 114-15 (3rd Cir. 2005) (same); Succar v. Ashcroft, 394 F.3d 8, 24 (1st Cir. 2005) (same).
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wom_ri
can you bring me up to speed as what these citations you mentioned are referring to? In other words, are you building up some new argument for any particular purpose for which the above citations can help?
 
mmlulin said:
Hi WOMers,

Finally I got THE email in the morning. Special thanks goes to Lazycis, Wom-ri, and jefkorn et al. I filed WOM for GC at the 18-month point (eb1) late in January, then came the Feb 4th memo. I don't know which event trigged the approval, it seems every road leads to Rome in my situation. I called AUSA last Monday, he said that I was already in the queue and would call me immediately upon any significant actions. I am not in a hurry any more, guess he will try to find me like crazy before the 60-day thing ends. I might refuse answer his call for a few days :cool:

Initially I wanted to have a lawyer to do the WOM. After having talked to 2 lawyers, I found out that they even told me things inaccurate and 1 lawyer had never filed any cases in the federal court. Then I decided to do Pro se after reading this post for a week. I am really glad that I have the ball to sue the government! If you are reading this post, you can do it too after reading a month-worth of posts. It is NOT that of a big deal.

Oh wait, I just realized that my case was approved in a leap year, I can only celebrate the anniversary every 4 years. How will I count the years for Natz, will I have to do WOM again? :eek: Oh man :D:D:D

Tips for WOM wannabes
1. Get a PACER account
2. Learn to use Acedemic Lexis-Nexis if you have access
3. Read this thread for at least a month-worthy of posts before asking any questions, and keep reading every 2 hours afterwards.
4. Double check you complaints before filing. I have read through many original complaints, a lot of them have obvious mistakes. You need to show your proficiency fighting with them!

BTW, my last FP was Aug 06. Last week the service rep mentioned to send me a new FP appointment, obviously, it is not needed. I did not do the TB skin test, and they did not care either.
Click to expand...



Congrats on your approval! I hope many such victories will come soon!
 
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