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

FBI namecheck should not have withheld adjudication.

FBI namecheck for 485 should have always happened in the background.

Look at this opinion(WAN SHIH HSIEH v. KILEY, District
Docket No. 77-6144, No. 439 - September Term, 1977
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
569 F.2d 1179; 1978 U.S. App. LEXIS 13074
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The investigation which appellant seeks to compel the INS to complete [**10] in the present action is not directed toward the preference petitions for the children but the question of whether appellant fraudulently acquired her immigration status. Whether the INS pursues this latter inquiry further and, if so, whether it will institute proceedings to rescind her status are HN4Go to this Headnote in the case.matters solely within the INS's discretion, see United States v. Santelises, 476 F.2d 787, 790 (2d Cir. 1973); United States ex rel. Masucci v. Follette, 272 F. Supp. 563, 565 (S.D.N.Y. 1967), and hence are not reviewable under the Administrative Procedure Act or 28 U.S.C. § 1361. Moreover, the INS has five years from the date when appellant acquired her permanent resident status within which to institute rescission proceedings. Zaoutis v. Kiley, 558 F.2d 1096 (2d Cir. 1977). In short, neither the children's application for admission into the United States as immigrants nor the Consul's request to the INS create a duty on the part of the INS to appellant to investigate whether rescission proceedings should be instituted, much less to complete any such investigation within a shorter period than that provided by [**11] § 246(a) of the Act, 8 U.S.C. § 1256(a). Aside from our powerlessness to intervene, the judicial creation of such a duty would have the potential for mischievous interference with the functioning of already overburdened administrative agencies.

In stating in its opinion that the INS had a duty under 8 C.F.R. § 205 and 22 C.F.R. § 42.43 to conduct and complete the investigation requested by the Consulate, the district court appears to have confused the INS's duty to act on preference petitions, which are concerned solely with the family relationship between the parties, with the question of whether the INS must investigate alleged fraud in obtaining a permanent resident status. These matters are entirely separate and distinct. Since there is no question as to the parent-child relationship between appellant and her children in Taiwan, the preference petitions were approved by the INS on April 9, 1975. The INS's duty in the matter ended there. To the extent that the district court's opinion states that the INS is under a further duty to investigate a fraudulently-obtained preference status it is vacated.
 
Thanks lazycis for your help. I am in MD and thus belong to the 4th circuit court. I got the paper work done and I am ready to file the 1447(b). Yesterday, I got a letter from a congressman that informs me my name check hasn’t been completed yet. I don’t want to wait any longer. Hopefully, I’ll have some good news to report to this forum soon.

Last night, I went through some of the old posts on this thread. And someone complained that they’ve never got any responses from Mr. Cannon. Well, he did write me a letter and claimed that my name check was finalized 8 months before I submitted my N-400 form.
There is no need to waste time on writing letters to them.


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).
 
You have ample proof and very good case to get done in a month or so. You will be getting OL in a few weeks after you file the WOM. Don't delay even a single day and file it asap....

Thanks lazycis for your help. I am in MD and thus belong to the 4th circuit court. I got the paper work done and I am ready to file the 1447(b). Yesterday, I got a letter from a congressman that informs me my name check hasn’t been completed yet. I don’t want to wait any longer. Hopefully, I’ll have some good news to report to this forum soon.

Last night, I went through some of the old posts on this thread. And someone complained that they’ve never got any responses from Mr. Cannon. Well, he did write me a letter and claimed that my name check was finalized 8 months before I submitted my N-400 form.
There is no need to waste time on writing letters to them.
 
Thanks lazycis for your help. I am in MD and thus belong to the 4th circuit court. I got the paper work done and I am ready to file the 1447(b). Yesterday, I got a letter from a congressman that informs me my name check hasn’t been completed yet. I don’t want to wait any longer. Hopefully, I’ll have some good news to report to this forum soon.

Last night, I went through some of the old posts on this thread. And someone complained that they’ve never got any responses from Mr. Cannon. Well, he did write me a letter and claimed that my name check was finalized 8 months before I submitted my N-400 form.
There is no need to waste time on writing letters to them.

If you are in the 4th Circuit, I recommend you to print out Etape ruling and attach to your complaint as an exhibit to let AUSA know that s/he has no wiggling room.
http://boards.immigrationportal.com/showthread.php?p=1758135&highlight=etape#post1758135
 
Thanks. I’ll print the ruling and use as an exhibit in my complaint. I read briefly about this ruling. It seems that he was denied of his application of citizenship by CIS after he filed the 1447b with the district court, then he filed appeals to the circuit court, and the circuit court over turned the decision of the district court. Please allow me to ask a ‘stupid’ question: the judges at the district court must (by law) follow the ruling of the circuit court on the same issue? Correct?

From what I read from this forum, the final outcomes of the lawsuit really depend on the particular judge. Each person’s luck is different. Is it possible to know ahead of time which judge is going to be assigned to my case, so I can search the old cases that the judge presided? I am hoping for the best but would like to prepare for the worst.


If you are in the 4th Circuit, I recommend you to print out Etape ruling and attach to your complaint as an exhibit to let AUSA know that s/he has no wiggling room.
http://boards.immigrationportal.com/showthread.php?p=1758135&highlight=etape#post1758135
 
Thanks. I’ll print the ruling and use as an exhibit in my complaint. I read briefly about this ruling. It seems that he was denied of his application of citizenship by CIS after he filed the 1447b with the district court, then he filed appeals to the circuit court, and the circuit court over turned the decision of the district court. Please allow me to ask a ‘stupid’ question: the judges at the district court must (by law) follow the ruling of the circuit court on the same issue? Correct?

From what I read from this forum, the final outcomes of the lawsuit really depend on the particular judge. Each person’s luck is different. Is it possible to know ahead of time which judge is going to be assigned to my case, so I can search the old cases that the judge presided? I am hoping for the best but would like to prepare for the worst.

The judge cannot rule contrary to the circuit ruling. Even the circuit court itself rarely overrules the existing precedent. It looks like every month cases are assigned to a particular judge in my court so it may be possible to figure out who will take a case, but there is no definite rule for this.
 
agency efforts & priorities

Lazycis,others:
Do you think there is a strong reason to believe that agency backlog elimination for labor certification is fundamentally different from agency inaction for I-485 ?
Do you think we have a stronger case for justifying estoppel against agency inaction ?
I am worried by the Liberty Fund decision...
The DOS argued that State govt had substantial role in labor cert(like FBI in namecheck)
The strong point i see here is 1153(e) - order of consideration..and Jan2005 memo(for misconduct) and litigation strategy
other than that other points can be tipped into Govt favor.
It went to D.C.Circ.. but then appellant's consent motion for voluntarily dismissal,
No. 05-5409
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
2006 U.S. App. LEXIS 21949
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In Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30, 2005), the court said that "[We] recognize[] that, on its face, a delay of two to four years in processing applications for permanent labor certification appears unduly long and works a hardship on employers and their prospective employees. However, the competing priorities posed by the tens of thousands of other pending permanent labor certification applications and by the H-1B and H- 2B temporary certification applications, together with the good faith efforts of the agency to alleviate the delays, outweigh those considerations. Hence, after careful consideration ... the Court concludes that mandamus relief is not warranted." The court applied the six principles cited in the leading case on the issue of unreasonable delay, Telecommunications Res. and Action Ctr. v. FCC to determine whether agency delay was so unreasonable as to warrant mandamus.
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Thanks again for your prompt reply. It's a very good thing to know this circuit ruling in advance. I read through the whole document and it's 2 against 1 for overruling the district court decisions.

One more thing: do you think that I should send my letter of intention to sue with the complaint to the local DA's office and USCIS office before submitting the law suit? If so, I think I should give them 30 days' response time.
This may lead to nowhere and may be not necessary.

Your help is greatly appreciated.

The judge cannot rule contrary to the circuit ruling. Even the circuit court itself rarely overrules the existing precedent. It looks like every month cases are assigned to a particular judge in my court so it may be possible to figure out who will take a case, but there is no definite rule for this.
 
Thanks again for your prompt reply. It's a very good thing to know this circuit ruling in advance. I read through the whole document and it's 2 against 1 for overruling the district court decisions.

One more thing: do you think that I should send my letter of intention to sue with the complaint to the local DA's office and USCIS office before submitting the law suit? If so, I think I should give them 30 days' response time.
This may lead to nowhere and may be not necessary.

Your help is greatly appreciated.

It's hard to advice. According to other people's experience, sending draft complaint is useless (I remeber one instance where it did help, but who knows for sure?).
 
Lazycis,others:
Do you think there is a strong reason to believe that agency backlog elimination for labor certification is fundamentally different from agency inaction for I-485 ?
Do you think we have a stronger case for justifying estoppel against agency inaction ?
I am worried by the Liberty Fund decision...
The DOS argued that State govt had substantial role in labor cert(like FBI in namecheck)
The strong point i see here is 1153(e) - order of consideration..and Jan2005 memo(for misconduct) and litigation strategy
other than that other points can be tipped into Govt favor.
It went to D.C.Circ.. but then appellant's consent motion for voluntarily dismissal,
No. 05-5409
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
2006 U.S. App. LEXIS 21949
--------------------------------------------------------------
In Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30, 2005), the court said that "[We] recognize[] that, on its face, a delay of two to four years in processing applications for permanent labor certification appears unduly long and works a hardship on employers and their prospective employees. However, the competing priorities posed by the tens of thousands of other pending permanent labor certification applications and by the H-1B and H- 2B temporary certification applications, together with the good faith efforts of the agency to alleviate the delays, outweigh those considerations. Hence, after careful consideration ... the Court concludes that mandamus relief is not warranted." The court applied the six principles cited in the leading case on the issue of unreasonable delay, Telecommunications Res. and Action Ctr. v. FCC to determine whether agency delay was so unreasonable as to warrant mandamus.
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I do think LC backlog is different. It's one thing when everybody's waiting in a long line and the agency just do not have a resources to process applications. Here the USCIS implemeted policy without established procedures and analysis, which lead to overburdening other agency, waste of taxpayers money and brought suffering to thousands of people. And it was completely unnecessary, as we found out in Feb 4th memo.
 
retrogression arguments

See Fu v Reno
Civil Action No. 3:99-CV-0981-L
N.D. Texas
2000 U.S. Dist. LEXIS 16110
November 1, 2000
---------------------------
Judgment on the Pleadings

The court must still determine whether, at the time the complaint was filed, the visas requested were available and therefore Plaintiffs' applications were ready for processing. If so, the court must also address the Plaintiffs' request for judgment on the pleadings and Defendants' motion to dismiss.

The court's previous order concluded that "Plaintiffs' priority date for eligibility did not become current until June, 1999, two months after Plaintiffs filed their Writ of Mandamus with the District Court. It is only subsequent to a priority date becoming current that the INS adjudicates an adjustment of status application." See Findings at 4. The basis for this conclusion is not clear, and is disputed by Plaintiffs. The court notes that there may be some disagreement about underlying facts. Plaintiffs identify their immigration status as "EB-2," see Plaintiffs' Objections to Findings, Conclusions and Recommendations of the United States Magistrate Judge, at 4. Defendants seem to assert that Plaintiffs' immigration status is "3rd preference labor based," see Defendant's Response in Opposition to Plaintiff's Motion to Reconsider and Renewed Motion to Dismiss, at 3.
 
mandamus

Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1378 (11th Cir. 1998) (en banc) (recognizing that the writ of mandamus is an appropriate remedy to correct the failure to carry out a ministerial task) (citing In re Estelle, 516 F.2d 480, 483 (5th Cir. 1975))

Can allocation of visa number be described as ministerial task?
 
challenging INS interpretation of the INA in regulations

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/42DE70D8ACB5B80888256F24005ABF9E/$file/0257037.pdf?openelement

Excellent example of Chevron analysis (CSPA case).

"In short, the age-out provisions of 8 C.F.R. § 214.15(g), as interpreted by the INS, are contrary to congressional intent and frustrate congressional policy. Rust v. Sullivan, 500 U.S. 173, 184 (1991); CHW W. Bay v. Thompson, 246 F.3d 1218, 1223 (9th Cir. 2001). Thus, the INS’s construction is not
owed the deference normally granted under Chevron. See id. We therefore invalidate the age-out provisions of 8 C.F.R. § 214.15(g), and reverse and remand for further consideration consistent with this opinion."
 
visa number is assigned when I-140 is approved?

U.S. v. Ryan-Webster, 353 F.3d 353 4th Cir.(Va.) Dec 22, 2003

"If the INS approves the Visa Petition and classifies the certified alien as so eligible, the alien is assigned an immigrant visa number by the Department of State." (talking about EB GC and I-140)

"The requirements for the final step of the three-part green card process depend upon whether the certified alien, at the time of his application, resides inside or outside the United States. When a resident alien receives a visa number, he must file with the INS a Form I-485, Application to Adjust Status ("Green Card Application"). The INS then considers the resident alien’s Visa Petition and Green Card Application and determines whether to "adjust" the resident alien’s status. 8 C.F.R. § 204.5(n). If the Green Card Application is approved, the INS adjusts the status of the resident alien to that of a lawful permanent resident who is entitled to live and work in the United States. 8 U.S.C. § 1255(a). The INS then issues a green card to the immigrant evidencing his immigrant status. On the other hand, when a nonresident alien is assigned a visa number, he must then complete the application process for an immigrant visa."
 
Verovkin v. Still, 2007 U.S. Dist. LEXIS 93904

Defendant's bald assertion that § 1255(a) contains an "express requirement that an immigrant visa be available on the date [an applicant's] status is to be adjusted" is simply not supported by the text of the statute. And Defendant has provided no explanation for his assertion that Plaintiff's eligibility for an immigrant visa should be evaluated as of the date of the adjudication of his application, when the statute clearly requires evaluating the availability of such a visa as of the date of the filing of his application.
 
about first amendment of complaint

Lazycis and fellow womers,

I am still a bit confused about this first amendment business. I know that I need to get summons for the new defendant (DOS). But do I need to get new summons for US attorney? I also need to file it with the court, right?

Would it be ok if I mail the amended complaint to US attorney on Saturday, and serve the new defendant on next Monday (also file it with the court)? My timeline is tight here and I try to make it happen before the April 3rd deadline , when the defendants will file an answer to the complaint.

thanks.
 
Lazycis and fellow womers,

I am still a bit confused about this first amendment business. I know that I need to get summons for the new defendant (DOS). But do I need to get new summons for US attorney? I also need to file it with the court, right?

Would it be ok if I mail the amended complaint to US attorney on Saturday, and serve the new defendant on next Monday (also file it with the court)? My timeline is tight here and I try to make it happen before the April 3rd deadline , when the defendants will file an answer to the complaint.

thanks.

Only for DOS. Make a copy for you. You do need to file amended complaint with the court and serve a copy of it to DOS (with summons) and AUSA. I recommend you to file it on Monday and hand delivering it to AUSA on the same day. You may be OK if you just mail it on Saturday to AUSA.
 
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