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

Operation Spotlight

All

Just wanted to see what the groups thoughts were on starting a campaign to draw the attention of the media to the incompetence and negligence of the USCIS and DHS. What I am thinking of is us all sending emails and letters with a consistent message of how long it takes for DHS to perform background checks and what the impact this could have on national security. I am sure conservative and liberal news media alike would be interested in a controversial story about the bad state of DHS capabilities to effectively track individuals. Short story is if it takes them 3 to 6 years to perform a background check on individuals then the FBI is no more efficient than it was before 9/11. They may try to say they are better now, but its all a smokescreen.

I have sent emails to some national news programs like CBS 60 minutes and Fox News Bill O'Reilly show, but have not heard anything back yet. If the media gets more emails and letters from us all then they would have to start take notice of this issue. Let me know your thoughts.
 
Yellowmango,

Most likely your application will be denied as you no longer eligible for 3 years period with US Citizen and that's the main purpose of USCIS of asking for compliance review. What you could do is ask the Judge to get you the oath as 120 days have already been passed and after that your are now under the jurisdiction of district court not USCIS.

LazyCIS could you please put anything else to get him relieve?

OK-Boy


yellowmango said:
After having filed my 1447b lawsuit in March, I received a letter today from the USCIS asking me to come in for a compliance review, and also asking me to bring my spouse if she is in the US.

I am concerned about this because I got divorced in the last year, and no longer live with my ex-wife, or even in the same state, so there is no way I can bring her with me to the interview.

At the time I filed my N400, I applied on the basis of being a permanent resident for 3 years and married to the same US citizen during that time. I was still married at the time of the interview, and was also married when the 120 day limit for USCIS to complete adjudicating the case expired. Since that time however, I had to move for work reasons and subsequently got divorced.

Does this jeopardize my citizenship application in any way? I have by now been a permanent resident for well over 5 years, and qualify even under the 5 year permanent residence requirement. However I had met all the requirements under the three year rule when I had initially applied for citizenship.
Click to expand...
 
OK-Boy said:
Yellowmango,

Most likely your application will be denied as you no longer eligible for 3 years period with US Citizen and that's the main purpose of USCIS of asking for compliance review. What you could do is ask the Judge to get you the oath as 120 days have already been passed and after that your are now under the jurisdiction of district court not USCIS.

LazyCIS could you please put anything else to get him relieve?

OK-Boy
Click to expand...

8 USC § 1430. Married persons and employees of certain nonprofit organizations
(a) Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427 (a) of this title if such person 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 three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

So it should not matter what happened with the marriage after the application was filed. Yellowmango is still eligible for naturalization.

See also
8 CFR 335.3(b)
(b) Rather than make a determination on the application, the Service officer may continue the initial examination on an application for one reexamination, to afford the applicant an opportunity to overcome deficiencies on the application that may arise during the examination. The officer must inform the applicant in writing of the grounds to be overcome or the evidence to be submitted. The applicant shall not be required to appear for a reexamination earlier than 60 days after the first examination. However, the reexamination on the continued case shall be scheduled within the 120-day period after the initial examination, except as otherwise provided under Sec. 312.5(b) of this chapter.

So technically yellowmango can refuse to go because the second examination should be within 120 days after the initial examination. In any case, 1447(b) suit will not let USCIS to deny N400. See this case http://bibdaily.com/pdfs/Szpak 7-25-07.pdf
 
how to counter with this argument?

Lazycis and others,

I am deeply troubled by the following argument from defendants' Reply. Since we have no constitutionally proteced interest in immigrant visas or the procedures by which such visas are obtained, does that mean the USCIS and DOS can do whatever they want and do not have to follow the federal statues, or treat us like dirt? I think the judges who made these rulings are biased against aliens. :mad:

Plaintiffs have no constitutionally protected interest in immigrant visas or the procedures by which such visas are obtained. Amoakowaa v. Reno, 94 F. Supp. 2d 903 (N.D. Ill. 2000)(citing, DeAvilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981)(“Visa applicants have no vested right in the issuance of visas.”). See also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321 (1982)(“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional right regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”)
 
There is no right to get a visa, but there is a right to get a decision upon a visa application within a reasonable time. Two different things. Don't let AUSA confuse you :)

Read this article to better understand the concept:
http://findarticles.com/p/articles/mi_qn4183/is_20030208/ai_n10054759

"Thus was born the Accardi doctrine. It has never been entirely settled whether this is a matter of due process as well as of administrative common law, but it is at least a principle of the latter. Since Accardi, the federal courts have at least professed to require government agencies to follow their own rules when dealing with the regulated public. Over the years, Accardi has been as useful to regulated businesses as to individuals."
 
Last edited by a moderator:
thanks,lazy!!

Now I have a much better understanding of it, after reading this article. Thanks a lot, lazycis!:)

lazycis said:
There is no right to get a visa, but there is a right to get a decision upon a visa application within a reasonable time. Two different things. Don't let AUSA confuse you :)

Read this article to better understand the concept:
http://findarticles.com/p/articles/mi_qn4183/is_20030208/ai_n10054759

"Thus was born the Accardi doctrine. It has never been entirely settled whether this is a matter of due process as well as of administrative common law, but it is at least a principle of the latter. Since Accardi, the federal courts have at least professed to require government agencies to follow their own rules when dealing with the regulated public. Over the years, Accardi has been as useful to regulated businesses as to individuals."
Click to expand...
 
Estoppel claim

Hey, folks,

Hope this is helpful, in case you want to use estoppel claim in your case!

Plaintiffs believed that FBI name check is required and, instead of filing Temporary Restraining Order (TRO) requiring government to issue them two visa numbers, they asked the court to compel FBI to complete name check first and then compel USCIS to adjudicate the I485 applications. Also, Plaintiffs waited significantly longer before they filed the lawsuit than they would have if they knew that name check is not required. If they had filed the complaint earlier than September 27, 2007, or if they had filed application for TRO with the complaint together, the results would have been different for them. Therefore, Plaintiffs relied on the misrepresentation to their detriment.
Plaintiffs concede that estoppel claim against government is distinguished from ordinary estoppel by the federal courts. See Best v. Stetson, 691 F.2d 42, 43(1st Cir. 1982)(“It is primarily this fourth factor that distinguishes "governmental" from "ordinary" estoppel, for any unfairness to a party of denying estoppel often is outweighed by the importance to the public of enforcing the underlying congressional policy.”). However, the court opined in the same case: “In this case, the fourth factor is of less than usual significance. Contained in a personnel manual, not a statute, the policy as it is in issue here is derived from a regulation that the Supreme Court has specifically declared unconstitutional. Hampton v. Mow Sun Wong, supra.” The policy from September 2005 DOS Visa Bulletin (“requests for numbers will be honored only if the priority date falls within the new cut-off date”), as interpreted by the INS, are contrary to congressional intent and frustrate congressional policy. This policy conflicts with 8 USC §1255(a)(iii), in which the statute clearly requires evaluating the availability of such a visa as of the date of the filing of their applications. Therefore, the fourth factor is of less than usual significance in this particular case.
 
Last edited by a moderator:
Compliance Review

That is really good to know.

I am planning to go this "Compliance Review" and take with me copies of all the supporting documentation that I have, but my ex-wife will not be with me. Should I write them a letter or call to let them know that or just show up at the appointment and explain my situation then?

Thanks for all your help.

lazycis said:
8 USC § 1430. Married persons and employees of certain nonprofit organizations
(a) Any person whose spouse is a citizen of the United States, or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this subchapter except the provisions of paragraph (1) of section 1427 (a) of this title if such person 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 three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

So it should not matter what happened with the marriage after the application was filed. Yellowmango is still eligible for naturalization.

See also
8 CFR 335.3(b)
(b) Rather than make a determination on the application, the Service officer may continue the initial examination on an application for one reexamination, to afford the applicant an opportunity to overcome deficiencies on the application that may arise during the examination. The officer must inform the applicant in writing of the grounds to be overcome or the evidence to be submitted. The applicant shall not be required to appear for a reexamination earlier than 60 days after the first examination. However, the reexamination on the continued case shall be scheduled within the 120-day period after the initial examination, except as otherwise provided under Sec. 312.5(b) of this chapter.

So technically yellowmango can refuse to go because the second examination should be within 120 days after the initial examination. In any case, 1447(b) suit will not let USCIS to deny N400. See this case http://bibdaily.com/pdfs/Szpak 7-25-07.pdf
Click to expand...
 
Hi, Lazycis and other gurus,

I filed WOM in early April, the judge issued an order to show cause on 4/9/08. Today, I received a copy of the response from the AUSA.

AUSA listed three main arguments in their responses:

A. Defendants Mukasey and Mueller should be dismissed

B. The Court lacks subject matter jurisdiction
1. 8 USC 1447 is Inapplicable where Plaintiff has not been examined
2. The court lacks jurisdiction under the Mandamus Act Because Plaintiff Cannot Establish The Existence of a Nondiscretionary, Ministerial Duty
3. The Court Lacks Jurisdiction Under the APA Because Plaintiff Cannot show Action Has been Unlawfully Withheld or Unreasonably Delayed

C. Agency Action Has Not Been Unreasonably Delayed("TRAC" factors)
1. A Rule of Reason Governs the agency decisions at Issue
2. There is no congressionally Mandated timetable
3. The impact of the delay is minimal in comparison with the national interest in complete and thorough background checks
4. The effect of expedition would intrude on Agency discretion and prejudice other "First in Line" Applicants
5. The agencies are exercising every effort to address the delay

Does anyone know any good cases I can read to fight the above arguments? I am still digesting the AUSA's response. I know the nondiscretion part shouldn't be too hard to fight. But any information is highly appreciated.

Thanks!
 
How to find WOM for AOS cases in Pacer?

Hi all,
How can I find WOMs only related to AOS using Pacer? I searched for Chertoff as the party and 890 as the nature of suit but that brought back Citz. cases as well.

May be there's a better way to search using Lexis but I don't have an account. I wanted to look at some Complaint samples esp. after the name check polciy change and see how different complaint are incorporating that. In general, study different complaints to improve my own. I would like to look at some sample complaints (other than the ones available at WIKI page)?

Thanks
 
Getting ready to File WOM

Hi Guys,

I have tried every possible option to expedite my I-485. I am lost!!!!!
- FOIPA
- Infopass
- Letter Congressman, Senator, First Lady, VP, USCIS Director, Deputy Director, Ombudsman etc.

I received letter from Mr. Cannon last week that my name check is pending for more than 3 years. They will inform USCIS as soon as it is completed. Michael Aytes, Feb Memo gave me hope but I dont want to wait anymore.

I live in Jersey but I am planning to use Mr. Joeseph Hohenstein (www.orlow.com) in Philadelhia to file WOM.

Please provide any experience or feedback you may have. Thank you very much.


############################################
PD - 02/2002
I-140 - 05/2005 (AD)
I-485 - 04/2005 (RD)
Name Check Pending ( Extended Review etc. etc.).
Case transferred from CSC to NSC
#############################################
 
I've heard some good reviews about Joseph Hohenstein. Orlow, Kaplan & Hohenstein, LLP was involved in class litigation against INS/USCIS.
 
Hi lazycis:

Good to see you here. I saw some class-action law suits of delayed N400 cases attacked the FBI's name check, as it is not required by law and causes long-delay in N400 case. It is a good idea to include in the 1447(b) law suit ?

Thanks for your help!!!
 
haplabor said:
Thank you Lazycis. Do you know if Philadelphia is favorable district for WOM? I live in New Jersey
Click to expand...

Eastern Pennsylvania District is much more favorable than New Jersey, but there are few government-biased judges in EPaD as well. It may be difficult to file a complaint in Philly if you live in NJ though.
 
You must log in or register to reply here.
Top