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

forgot to photocopy summons

Lazycis,others:
I got a summons form for Defendants, DOS, signed by the court clerk on Feb 29, 2008. I sent the summons with the complaint to DOS on the same day. But I did not photocopy the summons form :(
Now the clerk is saying that she requires the photocopy of the summons. Like they did before, the court clerk on Feb 29, did not create a copy for themselves and it is not on the docket report yet.
How do I fix this ? new summons ??? this may invalidate my preliminary injunction & TRO.
I have the USPS certified mail receipt & online proof of service.

It's stupid that I missed this detail.. I was in a hurry to post it.
 
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wom_ri said:
Lazycis,others:
I got a summons form for Defendants, DOS, signed by the court clerk on Feb 29, 2008. I sent the summons with the complaint to DOS on the same day. But I did not photocopy the summons form :(
Now the clerk is saying that she requires the photocopy of the summons. Like they did before, the court clerk on Feb 29, did not create a copy for themselves and it is not on the docket report yet.
How do I fix this ? new summons ??? this may invalidate my preliminary injunction & TRO.
I have the USPS certified mail receipt & online proof of service.

It's stupid that I missed this detail.. I was in a hurry to post it.
Click to expand...

By FRCP you are not required to make a photocopy of the summons. You do need to provide the proof of service. I had the similar issue - clerk did not accept a printout from USPS website as a proof of service. Just wait for another clerk :) Do you have a return receipt? Did you send a copy of summons to AUSA? That should be enough.
 
I sent the complaint & summons(original copy) via certified mail to DOS(I did not pay 3 bucks extra for the green card(certified return receipt) ). But I have the receipt of the certified mail and the printout of USPS email about delivery of the packet to DOS.
I did not send a copy of the summons to AUSA( I didn't with the other defendants either, USCIS,FBI..).
But I have a copy of those other summons.

The middle aged lady at D.R.I is unnecessarily strict and overconfident about her knowledge. She said that a proof of service(email printout of USPS website) is not correct. I have to wait for the green card (return receipt requested).
I got a new summons issued by this lady. Made a copy of the summons and sent the whole packet again to DOS with summons by certified mail (this time with the green card). Just in case this becomes a issue.

The other clerks were fine with this proof for all my other defendants.
I plan to go tomorrow morning and give copy of the new summons(dated Mar 24) with email proof of delivery to DOS(dated 2 Mar-- sixty days should count from here.. hopefully) to the other clerk.
I guess this should work out fine for the interim. Once I get the green card receipt for the new postage.. I plan to submit it too.
Am I goofing things too much..


lazycis said:
By FRCP you are not required to make a photocopy of the summons. You do need to provide the proof of service. I had the similar issue - clerk did not accept a printout from USPS website as a proof of service. Just wait for another clerk :) Do you have a return receipt? Did you send a copy of summons to AUSA? That should be enough.
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wom_ri said:
If court establishes estoppel claims are valid, you dont need to prove undue hardship. It is the injustice done to you that warrants estoppel and court can grant relief.
Under the APA too, court can set aside agency action/inaction..which means you can get retroactive benefit and you don't have to prove undue hardship.
I submitted application for preliminary injunction & temporary restraining order today for holding visa number and that requires establishing(to some extent) undue hardship exists if not awarded.
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I agree but based on the decisions I have read on estoppel claims agains the US govt, the standard is pretty high. for Affirmative misconduct you have to show more than negligence, you have to proof that they acted in bad faith, withheld information or used information incorrectly. Pretty high bar dont you think. No harm trying.
Good luck with your restraining order and injunctive relief. I have a extended status conference with the judge on APril 4th where the defendants have to inform the judge as to why the application is not ready for adjudication. The Civil local rules in my district are not very good for prelim injunction. I was thinking of Summary judgement and motion to shorten time (10 days) based on visa becoming unavailable again argument.
 
wom_ri said:
a recent case for retroactive GC(not related to namecheck)..
plaintiff lost... this is ED Michigan. I did not expect anyting better from them.
bcos it was not Namecheck delay.. plaintiff could not add estoppel
claims..
Iam interested in this sentence opined by the judge:
In fact, case law holds that the INS lacks authority to grant adjustment of status nunc pro [*13] tunc. See Dong Sik Kwon v. INS, 646 F.2d 909, 917 (5th Cir. 1981).
I just don't understand judges from ED Michigan. Why do they misinterpret decisions such as this. Kwon v INS had distinctly different factual issues.
That case lead me to :
JUNG BEEN SUH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
.
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Some judges in ED Michigan are not even aware of the presedents of their own sixth circuit. The 6th Circuit does not preclude the possibility of the nunc pro tunc releif for I-485. I am buliding up my arguments for fighting mootness in my case and I am going to argue the availability of nunc pro tunc as well.
 
lazycis said:
Romero-Rodriguez v. Gonzales, 488 F.3d 672 5th Cir. Jun 04, 2007

www.ca5.uscourts.gov/opinions/pub/05/05-60661-CV0.wpd.pdf

The BIA, on the other hand, has a long history of employing nunc pro tunc to backdate proceedings and orders where the error was not clerical or where there was no error at all. Edwards v. INS, 393 F.3d 299, 308 (citing In re T----, 6 I. & N. Dec. 410, 413 (BIA 1954); In re A----, 3 I. & N. Dec. 168, 172-73 (BIA 1948); In re L----, 1 I. & N. Dec. 1 (A.G. 1940)); see also Patel v. Gonzales, 432 F.3d 685, 694 (6th Cir. 2005) (“[T]he BIA may reasonably determine that a nunc pro tunc order is necessary to effectively implement the goals of the INA even where the DHS has not erred.”). The BIA’s use of nunc pro tunc is broader than the court’s proper use and is based on a statutory commitment of authority to use back-dating measures where the BIA deems it appropriate. Patel, 432 F.3d at 694 (“It makes persuasive sense that the power of the BIA to enter nunc pro tunc orders is greater than that of federal courts. Unlike the BIA, Congress did not entrust the federal courts to implement the INA but rather to insure that the DHS and BIA act within their statutory authority under the INA.”). As a result, the BIA has exercised a form of statutory nunc pro tunc separate and apart from the court’s equitable nunc pro tunc.
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This is good stuff. Thanks!
It is the AG that has the discretion for for recording green card date by statute, I am trying to find out if he/she ever did nunc pro tunc.
 
You have to request discovery to get all such nunc pro tunc instances..
The only instances you would find in legal_databases are those related to a lawsuit. e.g..
DEVI, Plaintiff, v. EDUARDO AGUIRRE
No. C 05-01179 JSW
2005 U.S. Dist. LEXIS 23864
------------------------------------------------------------------
The immigrant had filed as an asylee under 8 U.S.C.S. § 1158 in November 2000. In October 2001, the immigrant married a native and citizen of India. In June 2002, the USCIS sent the immigrant a letter that granted her asylum application, and informed her that her asylum status was granted nunc pro tunc in June 1996, the date she was originally granted derivative asylum status. The letter informed her that her asylee status entitled her to apply for immigration benefits, including petitioning to accord her spouse derivative asylum status under 8 U.S.C.S. § 1158(b)(3)(A).
rp1234 said:
This is good stuff. Thanks!
It is the AG that has the discretion for for recording green card date by statute, I am trying to find out if he/she ever did nunc pro tunc.
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update on Mocanu case

Mocanu case is dismissed as he was naturalized on 3/12. I wonder if his name check was completed...
 
first circuit could not hear estoppel claims

This is a related GC case. Interestingly it failed bcos estoppel & tolling
claims were not presented to earlier court.

Another case where nunc_pro_tunc was actually awarded:
edwards_2nd_circ
 
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wom_ri said:
This is a related GC case. Interestingly it failed bcos estoppel & tolling
claims were not presented to earlier court.
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This is bad. "[T]he INS has no authority to grant adjustment of status nunc pro tunc". I knew it's going to be difficult, especially in light of 1255(b). So the only way is to use estoppel for backdating, I guess.
 
Lazycis thanks for the update. What happened to the whole rule making process the judge was pushing USCIS on? USCIS was supposed to either require public comments on Name Check requirement of Natz. applications or not use it as a pre-condition for plaintiff's cases.

Did defendants file any motions/responses lately?

lazycis said:
Mocanu case is dismissed as he was naturalized on 3/12. I wonder if his name check was completed...
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jefkorn said:
Lazycis thanks for the update. What happened to the whole rule making process the judge was pushing USCIS on? USCIS was supposed to either require public comments on Name Check requirement of Natz. applications or not use it as a pre-condition for plaintiff's cases.

Did defendants file any motions/responses lately?
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Mocanu was a consolidated case. Not sure what happened to other plaintiffs. Defendants did not file anything in March, as far as I know.
 
rp1234 said:
I agree but based on the decisions I have read on estoppel claims agains the US govt, the standard is pretty high. for Affirmative misconduct you have to show more than negligence, you have to proof that they acted in bad faith, withheld information or used information incorrectly. Pretty high bar dont you think. No harm trying.
Good luck with your restraining order and injunctive relief. I have a extended status conference with the judge on APril 4th where the defendants have to inform the judge as to why the application is not ready for adjudication. The Civil local rules in my district are not very good for prelim injunction. I was thinking of Summary judgement and motion to shorten time (10 days) based on visa becoming unavailable again argument.
Click to expand...
Agree with the high bar for estoppel.. Estoppel does not happen usually happen on a large scale like this. Trust USCIS to establish such conduct!

We have a big burden to prove. But I think our case merits it.
We are a unique batch of people singled out by USCIS to prove on paper that they are doing things proactively for national securityin post sept11 world. Nothin wrong with the intention.. but execution was pure crap.
1. bad faith -- violation of 1153(e) .. requesting visa numbers for later applicaints
2. withheld information -- Jan2005 memo was withheld.. Feb2007 clarified an internal namecheck expedite trick. Feb2008.. namecheck reversal.. (this also is a pattern of deliberate lies).. collect namecheck memos from USCIS website and you will see the pattern.
3. Used information incorrectly..On various memo.. USCIS themselves acknowledge that the % of true hits from namecheck is very small.. So.. a mere hit in FBI databases implies nothing.. to withhold adjudication.. they used information incorrectly.. it does not render applicants ineligible for GC.. and they always could revoke GC at a later date.
 
1447(b)+WOM

This is an old post on this forum talking about filing 1447(b) + WOM together. Maybe it's more safer to use both even for the
1447(b) case. Any opinions on this?

Thanks very much for the help!

paz1960 said:
In the light of this decision and that USCIS is already using it in other cases, I must admit that shvili has a good point when s/he is pushing for a joint 1447(b)+WOM type of complaint in these stalled naturalization cases. It will be a lot harder and probably won't work for limited waiting time, but the time in that case should be counted from the date of the 1st FP, when the full criminal background check was initiated. If the time passed is longer than ~2 years, I think that this can be considered unreasonable delay and the Court may consider to compel FBI to finish the name check in XX days.
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I filed Response to MTD in October 2007 and my judge never made any decision since. I got my green card in early Febuary,but my case is still pending in the district court. I guess my AUSA is too lazy to do any thing about my case. So should I file any motion to dismiss or just leave it as it is. It seems my case is forgotten by all sides. I will be out of country for a month so am wondering what I should do.
 
zlcjf said:
I filed Response to MTD in October 2007 and my judge never made any decision since. I got my green card in early Febuary,but my case is still pending in the district court. I guess my AUSA is too lazy to do any thing about my case. So should I file any motion to dismiss or just leave it as it is. It seems my case is forgotten by all sides. I will be out of country for a month so am wondering what I should do.
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Oops, I just found out my case has been dismissed by the Judge even before my green card was granted but I did not receive a notice from the court. Oh, well...what we can do?! He has to stand by his collegues who grant MTD.
 
sweetapple said:
This is an old post on this forum talking about filing 1447(b) + WOM together. Maybe it's more safer to use both even for the
1447(b) case. Any opinions on this?

Thanks very much for the help!
Click to expand...

IMHO, 1447b precludes other avenues as it gives court exclusive jurisdiction and has implicit waiver of sovereign immunity. Mandamus is not available if other form of relief exist. Do not delay, file 1447b, get your citizenship and be ready to vote! Your case should be resolved without a fight (judging by other cases in NY).
 
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