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

That is a judge from my district and I love his opinion. Thanks a lot, lazycis!!
I prayed a lot for strength to fight and peace to sleep. But I am mentally prepared for a long battle. I will appeal if I have to, not only for GC but also for what I believe in.

Technically, it's midnight but do not be overanxious, they can file it not in time along with a motion for extension of time. Check the attached decision re Marcetic, you may find it useful.
I like this part: "Can plaintiff be denied a green card, separated from his family and ordered deported, in clear violation of the prior order, because of that administrative error? We think not."
 
That is a judge from my district and I love his opinion. Thanks a lot, lazycis!!
I prayed a lot for strength to fight and peace to sleep. But I am mentally prepared for a long battle. I will appeal if I have to, not only for GC but also for what I believe in.

I believe Paunesku v. INS is also from your district and the issue is similar.
Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999)
 
AC21 and visa #

Lazy, wom_ri and others,

I am confused about the relationship between AC21 and visa number. It seems that AC21 only remove the per-country limit in any calendar quater in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available. It doesn't say anything about the lost visa # can be recaptured or reused. Why there are AC21 visa # in 2005 and 2008, but not other years, according to wom_ri's complaint?

The AC21 removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available(See Section 106(d) of the act available at: http://history.nih.gov/01docs/historical/documents/PL106-313.pdf).

##########

i) Obtain AC21 visa numbers for year 2005
ii) Obtain unused visa numbers for year 2006 or 2007
iii) Obtain AC21 visa numbers for year 2008 or estop Government from denying visa numbers from year 2005-2008.

The other day, lazy gave me a link shows that 100000 visa # were available at the end of 2003. Can we prove that those numbers were not used between 2004-2008?
 
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Lazy, wom_ri and others,

I am confused about the relationship between AC21 and visa number. It seems that AC21 only remove the per-country limit in any calendar quater in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available. It doesn't say anything about the lost visa # can be recaptured or reused. Why there are AC21 visa # in 2005 and 2008, but not other years, according to wom_ri's complaint?

The AC21 removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available(See Section 106(d) of the act available at: http://history.nih.gov/01docs/historical/documents/PL106-313.pdf).

##########

i) Obtain AC21 visa numbers for year 2005
ii) Obtain unused visa numbers for year 2006 or 2007
iii) Obtain AC21 visa numbers for year 2008 or estop Government from denying visa numbers from year 2005-2008.

The other day, lazy gave me a link shows that 100000 visa # were available at the end of 2003. Can we prove that those numbers were not used between 2004-2008?

On top of AC21 numbers, 50,000 numbers where recaptured in 2005. Title V, Section 502 of the REAL ID Act of 2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) provided for the recapture of 50,000 Employment-based immigrant visa numbers that were unused in fiscal years 2001 through 2004.

You can find visa statistics on DOS web site
http://travel.state.gov/visa/frvi/statistics/statistics_1476.html

Using these numbers, we can estimate the surplus of visa numbers that was used in FY2004+05+06
157,107+242,335+133,623-3*140,000 (the actual number is higher than 140,000)=113065
101,000+50,000-113,065=38,000 visa numbers should be available. I am not sure of the breakdown, because visas recaptured in 2005 went to nurses/doctors, I believe.
 
visa # will be the only issue

I talked with the US attorney and she said she will only file 1 page MTD, saying that the visa # is the problem here and let judge decide. It looks like they know it will be a losing battle if argue about the jurisdiction. I guess that will make things a bit easier. Good for me.
 
I talked with the US attorney and she said she will only file 1 page MTD, saying that the visa # is the problem here and let judge decide. It looks like they know it will be a losing battle if argue about the jurisdiction. I guess that will make things a bit easier. Good for me.

Do you have a sample of opposition filed in N.D.Cal.? Even though it's tilted toward 9th cir, you can use it. I think it has all known cases in support.
the 7th Cir. wrote in Ahmed v. DHS, 328 F.3d 383 (7th Cir. 2003) (DV-lottery case): "At that point, unbeknownst to her, she made a fatal mistake by not arranging immediately for a lawsuit to be brought on her behalf in the United States prior to September 30." Cleary, the outcome could've been diffrent if Ahmed sued when visa vas available.
 
lazycis

By visas recaptured in 2005 (that went to nurses and doctors), do you mean the 50000 visa number you were talking about earlier?

In that case, we are not sure if it is 38000 or -12000 then?


On top of AC21 numbers, 50,000 numbers where recaptured in 2005. Title V, Section 502 of the REAL ID Act of 2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) provided for the recapture of 50,000 Employment-based immigrant visa numbers that were unused in fiscal years 2001 through 2004.

You can find visa statistics on DOS web site
http://travel.state.gov/visa/frvi/statistics/statistics_1476.html

Using these numbers, we can estimate the surplus of visa numbers that was used in FY2004+05+06
157,107+242,335+133,623-3*140,000 (the actual number is higher than 140,000)=113065
101,000+50,000-113,065=38,000 visa numbers should be available. I am not sure of the breakdown, because visas recaptured in 2005 went to nurses/doctors, I believe.
 
I don't have that one although I download files from this thread from time to time. Could you upload that file or let me know which page on this thread I should look for? Thanks.



Do you have a sample of opposition filed in N.D.Cal.? Even though it's tilted toward 9th cir, you can use it. I think it has all known cases in support.
the 7th Cir. wrote in Ahmed v. DHS, 328 F.3d 383 (7th Cir. 2003) (DV-lottery case): "At that point, unbeknownst to her, she made a fatal mistake by not arranging immediately for a lawsuit to be brought on her behalf in the United States prior to September 30." Cleary, the outcome could've been diffrent if Ahmed sued when visa vas available.
 
By visas recaptured in 2005 (that went to nurses and doctors), do you mean the 50000 visa number you were talking about earlier?

In that case, we are not sure if it is 38000 or -12000 then?

50000 went to nurses. But we do not know how many of these numbers went to nurses in 2005 and 2006.
It cannot be -12,000. It can be any number between 1 and 38000. Knowing the USCIS, I can guarantee it cannot be 0 :)
 
My MTD, finailly

Here it comes. This is the MTD that I have waited for the whole day. It does mention about the subject matter jurisdiction and failure to state a claim without detailed arguments. Of course the visa # issue is the most important part. I will start to work on my Opposition to MTD...:)
 
I was informed today that EB1A case is denied

They probably hold onto this denial decision and won't release it until the same day as MTD. What a bunch of losers!
I am definitely going to include that story (several IOs demand sex for green card) in my Oppo. To MTD, letting judge know what kind of people/losers they are.

They tricked me to spend 40 days to collect more than 200 pages of supporting documents for EB1A and then deny my case on the same day of MTD.
 
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Wommei:
5. Although both names-checks have now cleared, the plaintiffs’ I-485 Adjustment of Status Applications cannot currently be adjudicated because no visa numbers are available for XXX and XXXXXX’s preference categories.
THIS IS INCORRECT. No EB categories are unavailable. Retrogression is not unavailable. It only means they THINK you are NOT ELIGIBLE for a VISA NUMBER now based on your priority date. However, you can argue that their delay contributed to you losing this visa number.

7. In order to complete adjudication of both the primary and derivative application, visa numbers must first be available for allocation from the Department of State.
>> DO YOU HAVE DOS as a defendant. In your complaint you can ask court to compel DOS to release visa number.. court has power to grant that relief.

8. Plaintiffs’ originally filed suit to expedite the delay in XXX’s FBI name-check, which has since cleared. This case should now be dismissed because plaintiffs’ have no legal basis for asking the court to grant them preferential treatment in relation to all other similarly situated applicants who also await the availability of visas.
>> That is factually not correct. You were never given preferential treatment and were unjustly pulled out of the FIFO queue for visa numbers by USCIS. You are only asking court for justice now. USCIS violated 1153(e) by giving GC to people in your category with later priority dates. Request court to compel USCIS & DOS to release information on how many such applicants(in your category and with later priority dates) were given GC.

** The court should balance the legal analysis here. Your argument should make that clear. You were denied GC on the sole basis that namecheck is pending(i think they will stick to your EB1A rejection as other stuff being investigated in the time). Post Feb 4 memo, USCIS has no moral standing on this issue. Namecheck was never required FOR ADJUDICATION. You lost a claim to a visa number bcos of USCIS decisions that were capricious and unjust and in clear violation of APA also warrants estoppel against these agencies.

Here it comes. This is the MTD that I have waited for the whole day. It does mention about the subject matter jurisdiction and failure to state a claim without detailed arguments. Of course the visa # issue is the most important part. I will start to work on my Opposition to MTD...:)
 
Did you have an attorney for your EB1A ? I would check with an experience attorney on how to attack the denial. Iam not sure. Cant you appeal the decision (via the same complaint) ? If the denial is in error.. it only makes your case stronger. Research the denial in detail..

They probably hold onto this denial decision and won't release it until the same day as MTD. What a bunch of losers!
I am definitely going to include that story (several IOs demand sex for green card) in my Oppo. To MTD, letting judge know what kind of people/losers they are.

They tricked me to spend 40 days to collect more than 200 pages of supporting documents for EB1A and then deny my case on the same day of MTD.
 
The last TRAC factor directs courts to examine the motives behind the agency’s delay. See TRAC, 750 F.2d at 80 (“[T]he court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.”) (internal quotations and citation omitted). Even though Plaintiff is not required to assert, that any propriety lurked behind USCIS’ lassitude in adjudicating her AOS application for this Honorable Court to find the agency delay unreasonable (see Yu v. Brown, 36 F. Supp. 2d 922, 933 (D.N.M. 1999)), there are some troubling facts indicating that the USCIS, being fully aware of the delays associated with FBI name checks, did nothing to resolve it for several years.
First, the USCIS created the problem by expanding the scope of FBI name check without Congressional authorization, without implementing corresponding regulations in accordance with APA. See Mocanu v Mueller:
“Based on a review of the facts and bedrock principles of administrative agency law, the Court finds that USCIS's name check requirement has (1) never been authorized by Congress; (2) is not mentioned or contemplated by any fair reading of the current USCIS regulations; and (3) may not, without USCIS initiating notice and comment procedures, be used to delay action on Plaintiffs petitions …” 2008 U.S. Dist. LEXIS 10122 at *32-33 (E.D. Pa, Feb 8, 2008).
Second, the USCIS and FBI did not provide adequate resources for processing name checks. See Aslam v. Mukasey, 531 F.Supp.2d 736, U.S. Dist. LEXIS 5616 at *5 (E.D.Va. Jan 25, 2008): “The government concedes that the agency within the FBI responsible for name checks, the National Name Check Program Section ("NNCPS"), is understaffed. Approximately 3.3 million name checks are requested each year, resulting in 330,000 checks that proceed past the second stage. As of 2006, NNCPS only employed 103 personnel, 59 of which are dedicated to performing name checks for CIS. To meet its internal goals, the FBI has estimated that it needs 180 employees to process the CIS requests alone.”
Being aware of the problem the Defendants instead of resolving the problem adopted the policy of further delays by litigation. See Mocanu v Mueller, 2008 WL 154606 at * 4-5 (E.D. Pa. Jan 11, 2008):
“I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution… The entire pattern of the government conduct in these cases, including the way USCIS is handling the matters, and the Justice Department is briefing them, allows the unfortunate inference that judges and the judicial process are being used as tools to further delay, and obfuscation of the real reasons for delay on these petitions. From the above facts, specifically the failure to request class action treatment, MDL consolidation, single district consolidation, interlocutory appeal of the subject matter jurisdiction issue, and the surprising lack of citations, I tentatively conclude that the Defendants’ strategy is to use litigation as part of the delaying process.”
Finally, the Memo by Michael Aytes, Associate Director, Domestic Operations, United States Citizenship and Immigration Services from February 4, 2008 which instructed all USCIS employees to adjudicate adjustment applications when the FBI name check has been pending for 180 days or more without waiting for the results of the FBI name check confirms that the FBI name check requirements is not contemplated by federal laws and regulations. The Memo says, in particular:
“USCIS is issuing revised guidance in response to recommendations of the DHS office of Inspector General (OIG-06-06) regarding the need to align the agency’s background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE)… In the context of removal proceedings, ICE has determined that FBI fingerprint check and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of applicable regulations”.
Given the fact, that adjustment of status can be granted in removal proceedings (see 8 C.F.R. § 240.1(a), 8 U.S.C. § 1255), it's clear that FBI name check is not required by federal laws or regulations to adjudicate AOS application. Plaintiff would also like to raise a question: “Why the USCIS waited 3 years to follow recommendation issued in year 2005?”. Accordingly, the final TRAC factor also indicates that the delay in adjudication of Plaintiff's application is unreasonable.
 
EB1A case

I do have an attorney for EB1A case ( the same attorney for my NIW petition). I haven't got the letter explaining why it is denied. BUt my immigration attorney told me it takes a long time to appeal (1 year or longer) and it may not worth it. I think I should concentrate on the WOM suit rather than split my energy. But if the detailed denial letter seems to be in error or not reasonable, I will consider appealing for EB1A decision as well.




Did you have an attorney for your EB1A ? I would check with an experience attorney on how to attack the denial. Iam not sure. Cant you appeal the decision (via the same complaint) ? If the denial is in error.. it only makes your case stronger. Research the denial in detail..
 
citation for court order

Lazy or other members,

I want to use the correct format for citing the court order. Does the following look like a correct citation?

Also see Xia v. Mueller, C-07-01110 JW (N.D. Cal March 31, 2008) (“Plaintiff’ visa priority date was current when this case was briefed and argued…Subsequent limits on visa availability should not be allowed to deprive Plaintiff the relief she was otherwise entitled.”).
 
Xia v. Mueller, CV-07-01110, Order on Mot. for Sum. Judg. (N.D. Cal March 31, 2008)
If you have access to LEXIS, you may search there for citation.
 
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good case

Rasool Kashkool, Plaintiff, vs. Michael Chertoff, et al., Defendants.

No. CV-07-190-PHX-LOA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

2008 U.S. Dist. LEXIS 28292


April 7, 2008, Decided
----------------------------------
On February 8, 2008, USCIS released a memorandum to the field revising adjudication guidance concerning adjustment of status applications. The memorandum directs the field to continue to initiate FBI name checks, but revises prior guidance by directing that where the application is otherwise approvable and the name check request has been pending for more than 180 days, the adjudicator [*36] is to approve the I-485 application and proceed with card issuance. Interpreter Releases, Vol. 85, No. 7, February 11, 2008. Because neither party has cited this USCIS memorandum, the Court does not rely upon this USCIS memorandum in reaching its decision. The Court, however, notes that it provides further evidence that USCIS has a nondiscretionary duty to process I-485 applications within a reasonable time.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
8 The court in Jiuru Hu commented that "hould USCIS refuse to take any steps whatsoever to resolve a LPR application or employ procedures such that no decision will issue, it might legitimately be said the agency's inaction was not the result of an exercise of discretion at all. The agency would then not be operating within its statutory discretion at all but rather abdicating its statutory duty to adjudicate applications, and under those circumstances, this court could have jurisdiction to review the agency's actions.") Jiuru Hu, 2007 U.S. Dist. LEXIS 40489, 2007 WL 1515067, *4.
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- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 Defendants also suggest that Plaintiff's failure to name the Federal Bureau of Investigation ("FBI"), the agency responsible for conducting name checks, as a defendant is fatal to Plaintiff's suit. (docket # 30 at 2) The Court disagrees. The FBI's involvement in adjudicating I-485 applications arises not by statute or duty otherwise imposed by law, but by a contract between USCIS and the FBI. Konchitsky v. Chertoff, No. C-07-00294-RMW, 2007 U.S. Dist. LEXIS 53998, 2007 WL 2070325, *6 (N.D.Cal., July 13, 2007). In view of that arrangement, FBI may lack a clear duty to Plaintiff, and thus, this Court lacks mandamus jurisdiction over the FBI. Eldeeb v. Chertoff, No. 8:07-CV-23 6-T- 17EAJ, 2007 U.S. Dist. LEXIS 55000, 2007 WL 2209231, *21-22 (E.D.Fla., July 30, 2007). Similarly, absent any legal duty owed to Plaintiff that has been violated, Plaintiff could not state a claim against the FBI under the APA. Konchitsky, 2007 U.S. Dist. LEXIS 53998, 2007 WL 2070325, *6 [*6] (noting that "courts squarely addressing the issue of whether they have jurisdiction to compel the FBI to perform name checks in connection with adjustment of status petitions have overwhelmingly concluded that they do not.") Thus, Plaintiff prudently chose not to name FBI as a defendant. The Court notes, however, that the USCIS has the authority to direct the FBI to conduct a name check on an expedited basis. (docket # 30, Cannon Decl. P 19)(stating that "the FBI generally processes name checks on a 'first-in, first-out' basis unless USCIS directs that a particular name check be expedited.")
 
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